A truck driver aged 38 years of age sustained a disabling back condition over a period of time during the course of his employment with Kurt Transport Pty Ltd, during which the driver’s seat of his Western Star Prime Mover was defective.
- The decision considers the employer’s liability in circumstances where it fails to provide safe plant and equipment to a worker. The issue of factual causation is also considered at length, where a worker’s injury occurs following the actual incident.
The worker was employed by Kurt Transport Pty Ltd from September 2011. During 2013 for a period of six weeks, the worker drove a night shift for approximately 10 hours, five days a week. During that time, he was assigned a Western Star Prime Mover. It was established (and not in dispute) that over this period the worker’s driver’s seat was defective, including that it would only slide about a third of the way from its rear position. Because of that, the plaintiff let the air out of the air suspension mechanism of the seat, causing the ride in the truck to be rougher. Other faults in the seat also caused the worker to sit in awkward and unnatural positions whilst he was driving the truck. At trial, the worker described the roughness of the ride, however he did not suffer any particular injury, only that he was stiff across his lower back.
In early 2014, the worker was again assigned the same drive but over longer periods, and was also assigned the same truck with the defective seat. The lengthening of the run by a further two hours per night caused the worker’s back and legs to ache a lot more. The worker described the roughness of the ride as having no comparison to a prime mover that did not have a defective seat.
In May 2014, the worker eventually told his supervisor that his back was sore, and it was agreed that following the shift, the worker would change from the Western Star Prime Mover to a different truck. The worker later consulted his GP who noted that he had been suffering from back spasms and that the seat on the truck was broken, and was certified for a period off work.
Following that, the worker returned to work for several months and did not report any worsening in symptoms and his back even showed signs of improvement. The injury came to a head in December 2014 when the worker felt substantial pain in his back when he was getting changed. He consulted an orthopaedic surgeon who diagnosed the worker with a large paracentral disc protrusion with a lumbosacral junction compressing the left traversing nerve root, as well as a left S1 radiculopathy from a large left L5-S1 disc protrusion.
The decision at trial
It was uncontentious that the worker sustained a significant lower back issue. The primary issue for consideration was one of factual causation as the harm the worker alleged occurred in two separate instances (1) the injury comprising the pain and incapacity occurring in May 2014 and (2) the pain and incapacity he suffered in December 2019 and thereafter up to the present day and into the future. The question was whether the breach of duty to provide safe plant and equipment was a necessary condition of the occurrence of that harm.
Having regard to the weight of the medical evidence tendered at trial, His Honour Justice Jackson found that the harm suffered by the worker would not have occurred but for the employer’s failure to provide safe plant and equipment. In determining this, His Honour made a number of findings on the evidence:
- Orthopaedic surgeon, Dr Paul Licina, gave 'powerful evidence' that although the worker had some degeneration, the worker sustained a disc protrusion or herniation due to the defective seat in May 2014.
- Orthopaedic surgeon, Dr John Albietz, gave evidence that the worker’s spine did not merely degenerate and become symptomatic. Rather, the worker sustained injuries in two separate incidents in May 2014 (brought about by the defective seat) and December 2014 (causing exacerbation of the disc protrusion).
- In relation to the December 2014 injury, the employer argued that that event caused the disc protrusion alone, and could therefore not be related to his employment. This was rejected by the court, due to the radiological evidence between May and December 2014 indicating otherwise.
- That although the employer argued that the worker had pre-existing degeneration in his lumbar spine supposedly evidenced by three earlier instances of back injuries, no medical evidence tendered found a pre-existing degenerative disease of the worker’s lumbar spine.
- That the employer’s argument that the worker was likely to develop lumbar disc symptomology based on literature tendered at trial was not sufficient to support a finding that the worker had a pre-existing degenerative disease of his lumbar spine.
- That an expert report relied on by the employer in alleging the existence of pre-existing degeneration did not comply with the critical requirements of an expert report prescribed under rule 428 of the Uniform Civil Procedure Rules 1999 or the requirements provided in the AMA5 Guidelines.
- Interestingly, the court also found that an occupational health and safety engineer was not an appropriate expert to give evidence on the question of whether the worker’s injuries were caused or contributed to by the defective seat.
The worker was ultimately awarded $764,345.12 in damages clear of the statutory refund to WorkCover.
Implications for you
The decision highlights the difficulties and evidentiary onus which an employer faces in seeking to discount damages’ awards with reference to evidence of pre-existing conditions.